HR ‘less aware’ of payout risk in one legal area, lawyer claims

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 Employers tend to be too-little aware of legislation prohibiting discrimination based on a person’s family status.

Borden Ladner Gervais partner Duncan Marsden has said employers are typically aware of provincial and federal human rights legislation that prohibits discrimination in employment on the grounds of race, religion, sex and age.
 
However, he has written in the Financial Post that employees should be willing to assert their legal rights in an area he claims HR is often ‘less aware’ of.
 
“Employers tend to be less aware that the legislation also prohibits discrimination based on a person’s family status,” Marsden said.
 
Including both child and elder care obligations in his argument, Marsden said employers are less aware they may have to accommodate employees with such responsibilities, unless it causes the employer undue hardship.
 
He said employers who do not ‘act reasonably’ in their efforts to accommodate employees in these situations decrease their chances of success in a dispute.
 
“For employers, this means at the very least listening to the employee’s concerns and working with them to find a reasonable solution,” Marsden said.
 
The landmark Federal Court of Appeal decision in Johnstone v Canada shifted Canada’s employment law landscape when it was handed down last year.
 
The decision, in favour of a Canadian Border Services Agency employee, obliged workplaces to accommodate reasonable requests related to child care.
 
Marsden said Partridge v Botony Dental Corporation and Seeley v Canadian National Railway – which resulted in a total of $50,000 in damages payouts between them - were other examples of employers acting unreasonably.
 
The Devaney v ZRV Holdings decision in the Ontario Human Rights Tribunal had demonstrated the extension of this principle to elder care responsibilities.
 
Marsden said voluntary family activities like family vacations or after school sports did not fall under an employer’s duty to accommodate.
 
However, he said this grey area of parental choice meant that employers were often confused over what employers they can legitimately expect and refuse.
 
“Generally speaking, the courts have tended to side with the party acting more reasonably,” Marsden said.
 
In encouraging employees to pursue their rights, Marsden said they must also ‘act reasonably’.
 
“If your request only needs a short-term fix, then just ask for a temporary change to the work schedule,” he recommended to employees.
 

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